Family Law Property Settlement Brisbane & Toowoomba

Areas of Practice

Family Law Property Settlement

Family law property settlement is a process undertaken by two people who are or were in a relationship. It is the formalisation of the division of property so as to end the financial relationship between the two of you. The Family Law Act governs the step process and explains how you can go about the formal property settlement process. Our Family Law Team brings knowledge, empathy, discretion and common sense to your property settlement process. Regardless of whether your situation involves complex assets or liabilities, corporate interests, trusts, rural enterprises, our team are experienced and able to assist you.

Representation you can trust

Our dedicated team are based in both our Brisbane and Toowoomba office. Our family lawyers can provide you with Brisbane family law advice, or Toowoomba family lawyers. We want to support you and your family as you transition through separation, including the finalisation of your property matters. Our team are lawyers you can trust.


In fact, our team are trusted by clients all over Australia to assist with their family law matters, despite our base being in South East Queensland. Don't just google search "family lawyer near me" and choose on the basis of geographical location.


We have found that our refreshingly unique approach to assertive but consistent legal processes have been welcomed in other States and Territories, and have driven our team to service a wider area. For instance, we regularly appear in the Federal Circuit and Family Court of Australia in Brisbane, Sydney, Parramatta, New Castle, Lismore, Tamworth, Armidale, Hobart, Launceston, Cairns, Toowoomba, Canberra and the list goes on.

Experienced legal advice

Our family law team have a combined total of more than 20 years' experience in the family law system. Our family law team are able to quickly identify the relevant issues which are specific to your situation and to set out a bespoke plan to tackle both the big and small problems during your divorce or de facto separation.


Our team are holistic in their approach, ensuring that you feel supported and heard during the process.


Led by an Accredited Family Law Specialist, Sarah-Jane MacDonald, we are able to ensure that your property settlement interests are robustly represented. You will receive expert advice to assist you to navigate this difficult time.


Sarah-Jane has led the Family Law Team at MacDonald Law for more than 7 years and has ensure that hundreds of people are able to navigate the separation of their financial affairs robustly and with dignity.


Our team would be honoured to assist you.

What else is often included in a divorce property settlement?

The division of property between two spouses isn't the only matter which may need to be agreed upon or decided. These matters can also include spousal maintenance applications, parenting matters, child support, or a formal application for Divorce.

Spousal maintenance applications

Many people are not aware that the responsibility to assist or maintain your spouse does not necessarily cease when you separate. The Family Law Act 1975 sets out a requirement for a spouse to assist their former partner financially if they cannot meet their former partner cannot meet their own financial obligations, including living expenses, from their own income or assets. In essence, there must be one person from a previous relationship who has a need, and the other former partner who has capacity to pay.


As a general rule, this arises where former spouses have a significant difference in their income. In assessing your income disparity, it is important to note that Centrelink income or pensions are not included as income for the purposes of a spousal maintenance application.


It is also important to note that spousal maintenance can be ordered to be paid by former spouses to a de facto relationship, as well as from a marriage.

Superannuation

As part of your divorce property settlement, you and your former spouse are able to agree for superannuation to be divided. If you cannot agree, then the Court can order that the superannuation of each of you be divided. If such an order or agreement is reached, then this is called a superannuation split.


In order for a superannuation split to be binding, there are a number of steps to be undertaken. One of the major steps is to ensure that the superannuation value is properly determined. For defined benefit superannuation, this can include obtaining a formal valuation.



Additionally, for it to be binding on the Trustee of the Superannuation Fund, the Trustee needs to be served with a copy and have the opportunity to object to the terms if they so wish. This process is called procedural fairness.

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Child Support Matters

Learn more about child support so that you are equipped for the future

Resolve parenting disputes so that your family can move forward

Also known as a pre nuptial agreement

Formally apply for divorce so you can move forward

Frequently Asked Questions

Do we have to go to Court?

No. Many people separate and reach an agreement without having to participate in protracted litigation through the Courts system. However, if you cannot reach an agreement, then the ultimate decider of issues in dispute is the Court. For family law property settlement matters, this is the Federal Circuit and Family Court of Australia.


Can we finalise our property settlement without lawyers?


In short, yes. We always recommend you obtain independent legal advice prior to finalising a serious matter such as this. However, you can ultimately file an Applicaiton for Consent Orders with the Federal Circuit and Family Court of Australia without having a lawyer sign off on it. Alternatively, if you each want to obtain independent legal advice, you can choose to enter into a Binding Financial Agreement instead of consent orders, if this is more suitable to your circumstances. If you want to chat about the differences, we recommend you book an initial consultation with one of our family lawyers and they can take you through the pro's and cons of each option.


How do I separate from my partner?


In Australia there is no set formal way to separate. It does not require both parties to the relationship to consent to the separation. One party simply needs to indicate to the other that they are separated. This can be conveyed verbally, in writing, in person, over the phone or electronically, via a third party, or through conduct. Importantly, if the Court is trying to determine when two people separated, they often will consider factors such as did friends and family know you were separated, did you have separate bank accounts, did you remain sexually active, what were your sleeping arrangements, did you stay living together and did you do household chores for one another, among many other things.


If your separation date is contested, you need to be prepared to provide an example of how your separated life was different from your married life, and to have witnesses (a person) to provide evidence of being told you were no longer in a relationship.


Do children's wishes matter?

No. You can be separated under one roof, but this requires the parties to sleep separately, cease sexual activity together, and to have friends and family be told that you are separated.


Do we have to wait 12 months to finalise a property settlement like for a divorce application?

No, unlike an application for divorce, you do not have to wait 12 months to finalise a property settlement. You are able to commence the property settlement process immediately after separation. We recommend that you do so, in order to avoid complications with the identification of assets or liabilities due to delay.


What Court is the matter dealt in?

The family law system has undergone many changes over the last few decades. Our Family Law Team were appearing in the Federal Magistrates Court, Federal Circuit Court and the Family Court as they have all been known. Now the Court is known as the Federal Circuit and Family Court of Australia having merged as 1 Court in September 2021. 


Family law property settlement matters are heard in the Federal Circuit and Family Court of Australia, both in either Division 1 or Division 2, depending on the complexity and nature of the matter.

PROPERTY SETTLEMENT PROCESS

The Family Law Act sets out the process to be undertaken to identify the entitlement of each party to financial assets and liabilities after the breakdown of their relationship. A common misnomer is that there is an automatic 50/50 division of assets between the parties. This is not the case. Instead, the Courts apply a step by step process. 


Stage 1 - Is it just and equitable to alter the parties property interests?


For many people, this question may seem silly. If you have been married for 15 years, have 3 children and joint assets, then this step is really just a check box. However, in some circumstances where relationships are more grey than black and white, and the financial resources of the parties have not been pooled, this can be a significant question that is considered at great length during the process. The particular nature of the property pool between the parties can also give rise to additional consideration to this question.


Part of this decision can include determining if the parties were in fact in a de facto relationship, if this is an issue in dispute. It is not always clear whether the parties were in a de facto relationship. 


If the parties agree that it is just and equitable to alter the parties' interests, or the Court determines it is, then you proceed to the next steps to establish the property settlement.


Stage 2 - What is the property pool to be divided between the parties?


This involves the identification of the value of the assets, liabilities and other entitlements that would form what is known as the net asset pool.


These items include those in your sole name, your ex-partner's sole name, joint names, or the portion that you own in property owned jointly with other third parties.


Assets includes houses (including the family home and investments) and land (metro, rural, investment and your principal place of residence), shares, boats, motor vehicles, motorbikes, plant and equipment, tools (including tools of trade), business interests, and superannuation.


Liabilities can include mortgages, personal loans, credit cards, charge cards, HECS or HELP debts, AfterPay, Zippay, Zip Money and any other debts such as a debt to a family member.


It is important to note that the assets and/or liabilities are often included regardless of whether you or your spouse knew about their existence.


During the property settlement process, all parties have an ongoing obligation to provide disclosure of relevant information and documents. This extends to material and information which enables the property pool to be properly identified.


Stage 3: What are the contributions to the acquisition of the property pool by each party?


This involves an assessment of the financial and non financial contributions made at the commencement and during the course of the relationship. The usual approach of the Court will be to make a percentage finding in this regard, as well as taking into account the contributions made to the acquisition, conservation and improvement of property and the contributions to the welfare of the couple. It is important to note that this is not a mathematical calculation, but a holistic assessment of all contributions.


Financial contributions to the property pool include things such as wages, compensation payments, lottery wins or other windfalls, owning a property at the commencement of your relationship, inheritance payments or gifts from family and friends.


Non financial contributions to the property pool include things such as upkeep and maintenance to a property, caring for children, caring for your former partner's children.


Stage 4 - What are the future needs of each of the parties?


 This places a focus on additional factors, for example each person's future economic position or any disparity in income earning potential, the age and state of health of each of the parties, as well as the effect the Orders will have on providing a reasonable standard of living for each of the parties. At this stage, there is also consideration given to the children of the relationship and their circumstances. For instance, if they live primarily with one parent, then this can be taken into account.


Stage 5 - Is the proposed division just and equitable in all of the circumstances?


This ensures that any distribution of the property pool is done so on a just and equitable basis.


To do so requires confirmation that the resolution is practical and fair, and can include a consideration of any other matters at the discretion of the Court. For instance, this could include consideration of things such as tax implications, or the loss of an ability to work due to the proposed orders (ie. they require the sale of a self employed business).

Costs

$1,100 - $1,430 professional fees for a standard Application for Divorce

$2,200 - $3,300 – Parenting Plan where no negotiations required

$3,300 - $4,400 – advice on a pre-prepared Binding Financial Agreement


Payment plans available

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